Originating Application Not Intended to be Served (Form 38)

Under rule 29A of the Magistrates Court (Civil Division) Rules 1998 (Tas), a proceeding that an Act allows to be commenced by application to the Magistrates Court is commenced by an originating application in an approved form, filed in a registry. Form 38 is the version for an application that is not to be served. It is the same as Form 37 except that it has no 'Notice to person served' and no list of people to be served. Rule 39 requires an application and its supporting affidavit to be filed and sealed and served on the other parties unless they are to be dealt with in the absence of a party, so Form 38 is only appropriate where the application can properly proceed without notice. The form states that the applicant must file an affidavit explaining why the orders are sought.

When you need it

• The Act you rely on lets the application be made to the Magistrates Court without notice to anyone else.
• There is no respondent who needs to be given an opportunity to be heard.
• If anyone should be notified, use Form 37 instead and serve it.

1. 1

   Heading and parties

   Enter the registry and its address and the applicant. Complete the respondent line only if the application names one.

2. 2

   Applicant and orders sought

   Give the applicant's name and address (and capacity, if relevant) and specify the orders sought or the questions for decision, in numbered paragraphs.

3. 3

   Legislation

   Insert the Act and section the application is made under (r 29A(1)).

4. 4

   Notice of hearing

   Record the hearing or mention date, time and court. Ask the registry how the date is allocated.

5. 5

   Sign, footer and affidavit

   Sign and date the application, complete the 'filed by' footer with your address for service, and prepare the supporting affidavit setting out the facts and why you seek the orders.

• File the application and the supporting affidavit in a registry (r 29A(3)). Check the fees page for the filing fee.
• Because the application is not intended to be served, no service step is needed unless the Court directs otherwise. If the Court orders that someone be notified, serve the documents as directed and prove service by affidavit (r 43).
• Attend the hearing or mention on the date shown on the application.

• Make sure the Act you rely on really permits the application to be dealt with without notice to anyone; if in doubt, use Form 37 and serve it.
• Put everything the magistrate needs in the affidavit; with no other party, the Court relies on your material.
• The form still says the applicant must 'file and serve' an affidavit. With an unserved application, filing it is what matters.